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Australian Government Department of Home Affairs Submission to the Inquiry into the Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions] Senate Legal and Constitutional Affairs Legislation Committee Table of Contents Executive Summary 3 PART A: History of Regional Processing 5 Regional processing transferee populations statistics 5 PART B: Health, welfare and support services available in Nauru 6 Health Investment in Nauru 7 PART C: Health, welfare and support services available in Papua New Guinea 8 Health Services in Papua New Guinea 8 Health Investment in Papua New Guinea 9 PART D: Third country medical transfers (including to Australia) 10 PART E: Issues Identified with the medical transfer provisions inserted into the Migration Act by Schedule 6 of the Miscellaneous Measures Act 11 Eligibility 11 Security and character assessment 12 Legacy minors 13 Sovereignty issues 14 Independent Health Advice Panel remuneration 16 Self-harm 16 PART F: Operationalising Schedule 6 of the Miscellaneous Measures Act 17 Operationalisation of Christmas Island 17 Operation and Findings of the Independent Health Advice Panel 18 PART G: Durable Resettlement Solutions – Third Country Resettlement 19 Fact sheets 20 1. Overview of Schedule 6 of the Miscellaneous Measures Act 20 2. History of Regional Processing 20 3. Regional Processing Transferee Populations 20 4. Nauru: Overview of health services 20 5. Papua New Guinea: Overview of health services 20 6. Medical Transfers 20 7. Independent Health Advice Panel 20 8. United States Resettlement 20 Executive Summary 1 The Department of Home Affairs (Home Affairs) welcomes the opportunity to provide a submission to the Senate Legal and Constitutional Affairs Legislation Committee inquiry into Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions], following the introduction of the Bill into the House of Representatives on 4 July 2019. 2 The Bill seeks to amend the Migration Act 1958 (the Migration Act) to repeal the provisions inserted by Schedule 6 to the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the Miscellaneous Measures Act). The Bill also amends the Migration Act to extend existing powers in relation to persons transferred to Australia under the new medical transfer provision (section 198C) to allow for their removal from Australia or return to a regional processing country once they no longer need to be in Australia for the temporary purpose for which they were brought. 3 It also seeks to resolve issues regarding the effect of the provisions inserted by Schedule 6 of the Miscellaneous Measures Act, including: • Undermining of the Australian Government’s regional processing arrangements. Regional processing is a key pillar of Operation Sovereign Borders, a successful policy setting that has deterred potential illegal immigrants from engaging people smugglers to gain illegal passage to Australia. The provisions of the Miscellaneous Measures Act do not provide the Minister with the power to remove or return a transitory person brought to Australia under its provisions. This may create the false perception of a pathway to settlement in Australia. Settlement pathways are marketed by people smugglers to encourage further irregular maritime migration and the repeal measures seek to remove this perceived pathway and ensure the integrity of Australia’s borders. • Undermining of security. The Miscellaneous Measures Act limits the grounds upon which the Minister may refuse a transfer, significantly narrowing his ability to deny transfer to Australia where he reasonably believes the person would expose the Australian community to a serious risk of criminal conduct. The repeal measures seek to remove this barrier and ensure a holistic view is taken in considering who is permitted entry to Australia. • Sovereignty. The provisions also impinge on the sovereignty of Papua New Guinea and Nauru. Regional processing arrangements are governed by respective memoranda of understanding with Nauru and Papua New Guinea. As independent sovereign states, the laws of Nauru and Papua New Guinea govern the operations. 4 Further, the health of transitory persons has always been a priority for the Governments of Nauru, Papua New Guinea and Australia. Since 2012, the Australian Government has invested $489 million to support the delivery of health services in Nauru and Papua New Guinea. This includes $392.5m for the provision of contracted health services. 5 Health services in Nauru and Papua New Guinea include primary healthcare and mental healthcare services. These health services are provided by a range of registered healthcare professionals including general practitioners, psychiatrists, psychologists, counsellors, dentists, radiographers, pharmacists, mental health nurses and specialists who provide clinical assessment and treatment. Secondary and tertiary medical services are also available in Papua New Guinea (for transitory persons in Papua New Guinea and Nauru) and in Taiwan (for transitory persons on Nauru). Submission to the Inquiry into the Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions] Page 3 of 20 6 There has been much reporting that the Australian Government has had to be legally compelled to transfer persons from Nauru and Papua New Guinea to Australia to receive necessary health care. This position is not factually correct. During the period November 2012 to 31 July 2019, 1,343 individuals (717 medical and 626 accompanying family transfers) were transferred to Australia for medical treatment utilising existing powers under section 198B of the Migration Act. 7 As of February 2019 there are zero transitory person children in Nauru. The drawdown to zero transitory person children in Nauru is a result of 283 minors transferring to Australia under pre-Miscellaneous Measures Act provisions and a number being resettled as part of the arrangement with the United States. 8 Of the 1,343 individuals transferred, only 39 cases, involving 96 individuals, were court ordered. In many of the 39 cases, Home Affairs informed legal representatives of its intention to transfer their clients prior to proceedings being filed and that the transfer would occur as soon as practicable once the necessary medical transfer approvals were obtained in accordance with Government of Nauru and Papua New Guinea processes. However, the legal representatives proceeded to file anyway, on the basis that transfers were not occurring quickly enough. The issue in the proceedings then became about the pace that the transfers were able to be effected having regard to the practical arrangements that were required and the requisite local approvals. The remaining 1,247 transfers were facilitated utilising the existing power in the Migration Act without court order. 9 During the period 2 March 2019 to 31 July 2019, 72 transitory persons from Papua New Guinea and Nauru have transferred to Australia for medical treatment under section 198C(2) and four accompanying family members were transferred under section 198C(4) of the Migration Act. From 2 March to 31 July 2019 there have been 154 notifications for medical transfer (section 198E) received by Home Affairs. During that same period, Home Affairs transferred an additional 54 transitory persons to Australia under the pre-existing medical transfer process under section 198B of the Migration Act. 10 To address the shortcomings of the Miscellaneous Measures Act, and noting the existing medical transfer processes, it is necessary and appropriate that the Bill repeals the provisions inserted by Schedule 6. To illustrate this, this submission provides further context in relation to the history of regional processing; details of existing health, welfare and support services available in Nauru and Papua New Guinea; the issues, including operational difficulties, identified with the provisions inserted by Schedule 6 to the Miscellaneous Measures Act; as well as Home Affairs forward looking intentions in relation to the resolution of the regional processing caseload. Submission to the Inquiry into the Migration Amendment (Repairing Medical Transfers) Bill 2019 [Provisions] Page 4 of 20 PART A: History of Regional Processing 11 Regional processing in Nauru and Papua New Guinea was first established by the Howard Government in the early 2000s, introduced by the Migration Amendment (Excision from the Migration Zone) Act 2001, under what was commonly referred to as the ‘Pacific Strategy’. These arrangements ended in 2007 with the last person resettled from Nauru. 12 In 2012, the Gillard Government re-established regional processing arrangements in Nauru and Papua New Guinea following unprecedented numbers of illegal maritime arrivals. New regional processing provisions were inserted into the Migration Act (by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012), including requirements for the designation of regional processing countries and the taking of offshore entry persons (now known as unauthorised maritime arrivals) to a regional processing country. Those provisions also amended the definition of transitory person to include a person taken to a regional processing country. 13 Consequently, Australia entered into memoranda of understanding with the Governments of Nauru and Papua New Guinea for the transfer, management and protection assessment of transferees, under which Australia agreed to bear all costs associated with the arrangements and to support and assist Nauru and Papua New
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